Beruflich Dokumente
Kultur Dokumente
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 35
STATEMENT OF THE CASE
Internet. Id.
ments, and that people love to share their opinions with anyone who
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when they speak on their CB’s. Nothing prevents an individual from
using a real name, but the blog at issue here is typical in that
exchanges can be very heated and, as seen from the messages and
responses on the blog at issue in this case, App. 22-40, they are
Blog that makes them very different from almost any other form of
Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). The reply can
the audience that the critics are wrong. Indeed, the blog excerpt
the blog. App. 27, 29. And, because many people regularly revisit
audience as those who saw the original criticism. In this way, the
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Internet provides the ideal proving ground for the proposition that
“mental defects and diseases,” and that the misspelling of his name
four posters had used when posting their messages. After learning
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that disclosure would violate his First Amendment right to
the person who must be served to prosecute the action, and allow
the complaint and the briefs. Id. 19-20. The good faith standard
was met, the court decided, because Cahill is a married man, and
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SUMMARY OF ARGUMENT
concern to all who will listen, and full First Amendment protection
speaker, the courts must balance the right to obtain redress from
substantial risk of harm to the speaker, who not only loses the
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to restrain or oppose his speech. For example, an employer might
enable extrajudicial action may be the only reason for many such
makes it too easy to remove the cloak of anonymity will deprive the
may not even require plaintiff to meet the standards of Rule 11 and
somebody they do not like for the purpose of damaging her reputa-
tion. The challenge for the courts is to develop a test for the
easy for vicious defamers to hide behind pseudonyms, nor too easy
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for a big company or a public official to unmask critics simply by
based on each statement and against each defendant; (4) require the
claims, and (5) balance the equities, weighing the potential harm
court can thus ensure that a plaintiff does not obtain an important
plaintiff’s part and may delay his quest for redress. However,
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everything that the plaintiff must do to meet this test, it must
able to provide shortly after they file the complaint, the standard
demands for monetary relief, except in the rare case where the
prejudice the plaintiff. On the other hand, the fact that after
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ARGUMENT
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wants to express his views the opportunity to reach other members
119 S.Ct. 1450 (1999), aff’g 19 F. Supp.2d 1081 (C.D. Cal. 1998);
the group, readers will assume that the group feels the same way.
otherwise. And they may wish to say things that might make other
people angry and stir a desire for retaliation. Whatever the reason
of valuable contributions.
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capacity to monitor every speaker and discover his or her identity.
v. Alabama, 357 U.S. 449, 461 (1958); Bates v City of Little Rock,
361 U.S. 516, 524 (1960). Abridgement of the rights to speech and
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remain anonymous, justification for incursions on that right
anonymous speaker has the burden of showing that (1) the issue on
the case, and (3) the discovering party has exhausted all other
633 F.2d 346, 358 (3d Cir. 1980); Carey v. Hume, 492 F.2d 631 (D.C.
Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker
v. F&F Investment, 470 F.2d 778, 783 (2d Cir. 1972); Fuester v.
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would have a significant chilling effect on Internet communications
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II. Applying the Qualified Privilege for Anonymous Speech to
Develop a Standard for the Identification of John Doe
Defendants.
bulletin board. Dendrite v. Doe, 342 N.J. Super. 134, 775 A.2d 756
(App. Div. 2001). The court set out a five-part standard for cases
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plaintiff has set forth a prima facie cause of action
against the fictitiously-named anonymous defendants. In
addition to establishing that its action can withstand a
motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to R. 4:6- 2(f), the
plaintiff must produce sufficient evidence supporting
each element of its cause of action, on a prima facie
basis, prior to a court ordering the disclosure of the
identity of the unnamed defendant.
on other grounds, 575 Pa. 264, 836 A.2d 42 (2003), the court
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considering evidence supporting plaintiff’s claim before giving
Does 1-21, No. 02-430-JJF (D. Del., Nov. 1, 2002) at 6-7 (Addendum
defendant had not described his own holdings, and that no proxy
Court also held that no showing of harm was required for that cause
of action. (D. Del., Feb 13, 2005), at 2, Add. 12). In Sony Music
case that hundreds of songs that defendants had posted online were
Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), where the plaintiff
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used the plaintiff’s trademark. The court expressed concern about
notice that suit had been filed against them, thus providing them
1
A Connecticut court applied a balancing test to decide
whether it was appropriate to compel Time-Warner Cable Co. to
identify one of its subscribers, who was accused of defaming the
plaintiff. La Societe Metro Cash & Carry France v. Time Warner
Cable, 2003 WL 22962857, 36 Conn. L. Rptr. 170 (Conn. Super. 2003).
The Court took testimony from one of the plaintiff’s officials, who
attested both to the falsity of the defendant’s communication and
to the damage that the communication has caused, and decided that
the evidence was sufficient to establish “probable cause that it
has suffered damages as the result of the tortious acts of
defendant Doe,” at *7, and therefore ordered identification.
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17-18, but the court failed to note several features of that case.
The subscriber did not oppose enforcement, but AOL argued for a
and the evidence supporting them to ensure that the plaintiff has
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III Procedures That Courts Should Follow In Deciding Whether
to Compel Identification of John Doe Defendants in
Particular Cases.
court shuold is ensure that the plaintiff has undertaken the best
efforts available to notify the speakers that they are the subject
of time until the defendants have had the time to retain counsel.
ordered trial judges in New Jersey to follow it. 342 N.J. Super.
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at least as much time as would be allowed after receipt of a motion
to the Does. In future cases, amici suggest that courts should not
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in fact, have a valid reason for piercing each speaker’s anonymity.
of identities.
Plaintiffs here quoted the two posts on which they sued Doe 1.
Although the use of ellipses at the end of the quotation from the
none of the statements by Doe 1 are “of and concerning” her, and it
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Second, the statements that plaintiff Patrick Cahill alleges
251 & n.2 (Del. 1987). Moreover, just as readers will anticipate
and most readers will take them with a grain of salt rather than
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constitutes an accusation of engaging in a same-sex, extra-marital
See Amrak Prod's v. Morton, 410 F.3d 69, 71 (1st Cir. 2005)
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each Doe defendant. The requirement of presenting evidence
proceed with the case. However, the Court should recognize that
appropriate where the relief may undermine, and thus violate, the
the court. Thompson, On the Net, in the Dark, California Law Week,
like this one have publicly stated that the mere identification of
a libel case only after the critics have been identified and
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also urged companies to bring suit, even if they do not intend to
the John Doe action will probably slow the postings.” Eisenhofer
finding out who the defendant is. Id. When respected members of
the Bar are seeking clients by promoting the benefits that can be
posed by a mere “good faith” standard when libel suits are brought
public from discussing the public official who has filed the
Prod. Antitrust Litig., 680 F.2d 5, 6-9 (2d Cir. 1982); Richards
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Schultz v. Reader's Digest, 468 F. Supp. 551, 566-567 (E.D. Mich.
994 (8th Cir. 1972). “Mere speculation and conjecture about the
F.2d 583, 597 (1st Cir. 1980); Southwell v. Southern Poverty Law
Center, 949 F. Supp. 1303, 1311 (W.D. Mich. 1996). The requirement
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plaintiff’s claim will be based on evidence to which the plaintiff
proof of economic harm. Spence v. Funk, 396 A.2d 967 (Del. 1978);
"written," the notes to the Restatement point out that "in modern
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non-written communication] as harsh and unjust." Indeed, in Spence
rationales that underlie the distinction may not apply in the case
Most of the cases cited in Part II above were ones in which courts
Doe, 342 N.J.Super. 160, 775 A.2d 773 (2001), a companion case to
Even after the Court has satisfied itself that the speaker has
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that it was brought just to obtain the names . . ... On
the other hand, if a case is strong and the information
sought goes to the heart of it and is not available from
other sources, then the balance may swing in favor of
discovery if the harm from such discovery is not too
severe.
tion. Apart from the fact that, under New York Times, “[t]he First
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protect speech that matters,” Gertz v. Welch, 418 U.S. 323, 341
(1974), the issue at this stage of the case is not whether the
loses her anonymity, she can never get it back. And it is settled
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cisms weighs heavily against enforcement of the subpoena. Cahill
robust and unkind comment; and the comments for which Doe 1 has
been sued are core political speech, for which the protection of
consider not only the strength of the plaintiffs’ evidence but also
doctor who had collaborated with the Nazis in their heinous medical
experiments, or Hvide v. Doe, Case No. 99-22831 CA01 (Fla. Cir. Ct,
11th Judicial Cir., Dade Cy.), where the defendant claimed that the
HealthSouth Corp. v. Krum, Case No. 98-2812 (Pa. Ct. C.P. 1998),
where the poster claimed that he was having an affair with the
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In this case, even if the Court passed beyond the third prong
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IV. Dendrite’s Flexible Standard Discourages Frivolous
Lawsuits While Allowing Genuine Cases to Proceed.
who claims that her reputation has been unfairly besmirched against
could compel the disclosure of its critics simply for the price of
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number of subpoenas they have received – AOL’s amicus brief in
to stop and think before they sue, and to ensure that litigation is
the same time, those standards have not stood in the way of
The Maine Supreme Court did not reach the First Amendment
issue because it had not been presented below, Fitch v. Doe, 869
264, 836 A.2d 42 (2003). This case could be the first in which a
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their anonymity when their speech is not actionable.
CONCLUSION
Respectfully submitted,
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